Robert P. WATTERSON and Jean Hoffman, copartners, doing business as Scottsdale Physical Therapy and Rehabilitation Home, Petitioners,
The SUPERIOR COURT of the State of Arizona, IN AND FOR the COUNTY OF MARICOPA, and Kenneth C. Chatwin, Judge of the Superior Court of Maricopa County, and M. E. Ress and Sally Ress, Respondents.
[91 Ariz. 12] Kramer, Roche, Burch & Streich, Phoenix, for petitioners.
McKesson, Renaud & Cook, Phoenix, for respondents.
Petitioners (defendants in a civil action) herein sought the issuance of a writ of mandamus to compel Hon. Kenneth C. Chatwin, a judge of the Superior Court, to issue an order that 'a new trial as to all issues' in that action be had. The civil action had been tried to a jury, which failed to reach a verdict. The court declared
a mistrial and discharged the jury. Defendants had previously timely moved for a directed verdict. Defendants then moved the court for judgment in accordance with their previous motion for a directed verdict. The trial court denied this motion. Petitioners then urged that the court's only alternative was to enter an order for 'a new trial' under Rule 50(b).  The court declined to enter that specific order, but [91 Ariz. 13] made a minute entry directing that 'said cause is hereby returned to the administrator's office of the Superior Court of Maricopa County to be placed on the calendar for resetting in due course,' which in effect ordered that the case be tried again.
Petitioners state that such an order leaves them in limbo should they desire to appeal. They point out that under A.R.S. § 12-2101(F)(1)  an order for a new trial is an appealable order, although a denial of their motion for judgment in accordance with motion for directed verdict obviously does not furnish the basis for an appeal.
Rule 50(b) and Rule 39(g)  both deal with further procedure when a jury has been unable to agree on a verdict. The latter states that after the jury has been discharged, 'the action may be tried again', while 50(b) states that the court 'may order a new trial.' Reading these two rules together, we are of the opinion that they are designed to give the trial court the right to decline to make a final decision upon which a judgment could be based, and to have the case retried in order to reach a final determination. Section 12-2101(F)(1), on the contrary contemplates a situation where there has been a determination of facts or a final determination of the cause on a point of law which would ordinarily result in a judgment, then the dissatisfied party or parties may move for a new trial.
In this instant matter, there being no final determination by the jury on the facts upon which a judgment could have been entered, the court declined to make such determination, and merely put into effect a procedure to insure that the case would be tried again with the expectation [91 Ariz. 14] that at that time a final decision on the facts would be reached. We are of the opinion that this was entirely proper. Since the judge obviously in his discretion refused to assume the fact-finding functions of the jury, it was his right and ...